Appointments to the U.S. Supreme Court

Nomination of Justices to succeed Justices O'Connor
& Rehnquist

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Overview:

On 2005-JUL-19, President Bush nominated John G. Roberts, "a rigid
conservative" as his selection to replace Justice O'Connor who announced her
retirement from the U.S. Supreme Court. He was a U.S. Appeals Court
judge in the District of Columbia with "a deep Republican pedigree" who
has been under fire for his views against abortion access long before he was
nominated to the Supreme Court. President Bush referred to Judge Roberts as one
of the great legal minds of his generation. He said: "John Roberts has
devoted his entire professional life to the cause of justice. He is a man of
extraordinary accomplishments. He has a good heart." 8

Upon the death of Chief Justice Rehnquist in early
2005-SEP, the President selected Judge Roberts to be his nominee to that
position. That, in effect, left Justice O'Connor's position open. She decided to delay her exit from the Supreme Court until after her replacement is
approved by the Senate.

The announcement nominating Judge Roberts on 2005-JUL-19 PM:

The following is a transcript of the televised announcement:

GEORGE W. BUSH: Good evening. One of the most consequential decisions a
president makes is his appointment of a justice to the Supreme Court.

When a president chooses a justice, he's placing in human hands the authority
and majesty of the law. The decisions of the Supreme Court affect the life of
every American. And so a nominee to that court must be a person of superb
credentials and the highest integrity. A person who will faithfully apply the
Constitution and keep our founding promise of equal justice under law. I have
found such a person in Judge John Roberts.

And tonight I'm honored to announce that I am nominating him to serve as
associate justice of the Supreme Court. John Roberts currently serves on one of
the most influential courts in the nation, the United States Court of Appeals
for the District of Columbia Circuit.

Before he was a respected judge he was known as one of the most distinguished
and talented attorneys in America. John Roberts has devoted his entire
professional life to the cause of justice, and is widely admired for his
intellect, his sound judgment and personal decency.

Judge Roberts was born in Buffalo and grew up in Indiana. In high school he
captained his football team. And he worked summers in a steel mill to help pay
his way through college. He's an honors graduate of both Harvard College and
Harvard Law School. In his career he has served as a law clerk to Justice
William Rehnquist, as an associate counsel to President Ronald Reagan and as the
principal deputy solicitor general in the Department of Justice.

In public service and in private practice he has argued 39 cases before the
Supreme Court and earned a reputation as one of the best legal minds of his
generation. Judge Roberts has earned the respect of people from both political
parties.

After he was nominated for the court of appeals in 2001, a bipartisan group of
more than 150 lawyers sent a letter to the Senate Judiciary Committee. They
wrote: 'Although as individuals we reflect a wide spectrum of political party
affiliation and ideology, we are united in our belief that John Roberts will be
an outstanding federal court appeals judge and should be confirmed by the United
States Senate.'

The signers of this letter included a former counsel to a Republican president,
a former counsel to two Democratic presidents and former high-ranking Justice
Department officials of both parties.

My decision to nominate Judge Roberts to the Supreme Court came after a thorough
and deliberative process. My staff and I consulted with more than 70 members of
the United States Senate. I received good advice from both Republicans and
Democrats. I appreciate the care they took. I'm grateful for their advice.

I reviewed the credentials of many well qualified men and women. I met
personally with a number of potential nominees. In my meetings with Judge
Roberts I have been deeply impressed. He's a man of extraordinary accomplishment
and ability. He has a good heart. He has the qualities Americans expect in a
judge, experience, wisdom, fairness and civility.

He has profound respect for the rule of law and for the liberties guaranteed to
every citizen. He will strictly apply the Constitution and laws not legislate
from the bench. He's also a man of character who loves his country and his
family. I'm pleased that his wife, Jane, and his two beautiful children, Jack
and Josie, could be with us tonight.

Judge Roberts has served his fellow citizens well. And he is prepared for even
greater service. Under the Constitution, Judge Roberts now goes before the
United States Senate for confirmation. I've recently spoken with leaders,
Senator Frist and Senator Reid, and with senior members of the judiciary
committee, Chairman Specter and Senator Leahy. These senators share my goal of a
dignified confirmation process that is conducted with fairness and civility.

The appointments of the two most recent justices to the Supreme Court proved
that this confirmation can be done in a timely manner. So I have full confidence
that the Senate will rise to the occasion and act promptly on this nomination.
It is important that the newest justice be on the bench when the Supreme Court
reconvenes in October.

I believe that Democrats and Republicans alike will see the strong
qualifications of this fine judge. As they did when they confirmed him by
unanimous consent to the judicial seat he now holds.

I look forward to the Senate voting to confirm Judge John Roberts as the 109th
justice of the Supreme Court of the United States.

Judge Roberts, thank you for agreeing to serve, and congratulations.

JUDGE JOHN ROBERTS: Thank you, Mr. President. Thank you. Thank you very
much. It is both an honor and very humbling to be nominated to serve on the
Supreme Court.

Before I became a judge my law practice consisted largely of arguing cases
before the court. That experience left me with a profound appreciation for the
role of the court in our constitutional democracy, and a deep regard for the
court as an institution.

I always got a lump in my throat whenever I walked up those marble steps to
argue a case before the court. And I don't think it was just from the nerves.

I am very grateful for the confidence the president has shown in nominating me.
And I look forward to the next step in the process before the United States
Senate.

It's also appropriate for me to acknowledge that I would not be standing here
today if it were not for the sacrifice and help of my parents, Jack and Rosemary
Roberts, my three sisters, Cathy, Peggy and Barbara, and, of course, my wife,
Jane. And I also want to acknowledge my children, my daughter, Josie, my son,
Jack, who remind me every day why it's so important for us to work to preserve
the institutions of our democracy.

Thank you again very much. 9

Some possible factors involved in Judge Roberts' nomination:

As of mid-2005, he is 50 years of age. If his nomination is confirmed by
the Senate, he could influence the court to produce strict constructionist
rulings for three decades in the future.

He co-wrote a brief for President H.W. Bush saying that Roe v. Wade --
the Supreme Court decision that legalized early abortions -- should be
overturned because it has no basis in the U.S. Constitution.

His most recent decision involved overruling a lower court decision
concerning prisoners at Guantanamo Bay, Cuba. The lower court had determined
that military commissions violated the U.S. Constitution, international law
and American military law, and that trials must not be resumed.

In the year 2000, he was a member of the law firm that worked on behalf
of President Bush in the disputed presidential election.

He is male; this would halve the number of female justices on the
Supreme Court, and make the court less representative of the general
American population.

Past predictions of President Bush's nominee:

There were months of active speculation about the nominee that President Bush
would select. For years, Bush had said repeatedly that he admired Justices Antonin Scalia and Clarence
Thomas, generally regarded as the two most conservative, strict constructionist justices on the Supreme
Court. He has said that he wants a judge who will "strictly interpret the
Constitution" and "not use the bench to write social policy" and who
is a "strict constructionist." He has referred to the stance that his
nominee should take on specific matters:

She/he should be against extending the definition of marriage to include
same-sex couples.

Age is probably a major factor in the selection of a new justice. A nominee
aged 50 or under could influence the decisions of the court for three decades
into the future.

Sex may also be a major consideration. Sandra O'Conner was the first woman to
serve on the Supreme Court. But the names who were the subject of speculation in the media are
almost all males. For example, Tom Curry of MSNBC lists three widely discussed names

Judge Michael McConnell, 50, on the Tenth Circuit
Court of Appeals since 2002.

Judge John Roberts, 50, the actual nominee. He has been on the Court of Appeals
for the District of Columbia Circuit since 2003. 1

Attorney General Alberto Gonzales was also named as a likely candidate.
He is a close friend of President Bush, who appointed him to the Texas Supreme
Court. But he has alienated some conservatives who believe that he is not
sufficiently opposed to affirmative action for racial minorities and women's
access to abortion. He has alienated some liberals because of his attitude
towards elementary human rights. He was the person who wrote a memo justifying
the abandoning of U.S. and international treaties concerning the torture and
mistreatment of prisoners; some liberals feel that this lead to abuses at the
Abu Ghraib prison and in secret CIA torture facilities.

C. Boyden Gray, head of the Committee for Justice, a conservative group, said
that there are no guarantees that a justice will continue to behave as he or she
has in the past. He cites the case of Justice David Souter, who was appointed by
the first President Bush who was thought to be a conservative, but turned out to
be one of the more liberal members of the court. On the Fox News Sunday TV
program, Gray said: "Judges are independent. The judiciary is independent.
That's the way it should be. And there's no guarantee." 2

President Bush had indicated that he will not
announce his nominee until the end of 2005-JUL at the earliest. This is to allow
the President to interview the various candidates. There was speculation that he
might delay his announcement further, to allow time to consider a possible
replacement for Chief Justice Rehnquist as well. 3
However, President Bush decided to announce his
selection early, perhaps to give the Senate time to confirm him in advance of
the October sitting of the Court.

Comment on the nomination and confirmation process of Judge Roberts by Leon Panetta:

Leon Panetta is a former congressperson, director of the Office of
Management and Budget and White House chief of staff in the Clinton
administration. He currently co-directs the Leon and Sylvia Panetta Institute
for Public Policy, in Seaside, CA. He wrote an opinion piece in the Monterey
Herald on 2005-JUL-10, nine days before the Roberts nomination was announced. Panetta suggests that if the president does not nominate
a person to replace Sandra Day O'Connor who is also a moderate and who would
provide a swing vote between the conservative and liberal factions on the court,
the internal religious, philosophical and political divisions within the U.S.
could further degenerate. He concluded his opinion piece with the following:

"...it is no secret that this country is increasingly divided between the
red and the blue states, between evangelicals and secularists, between
Democrats and Republicans, between conservatives and liberals."

"The current vacancy on the Supreme Court is being viewed by groups on the
right and left as an opportunity to further divide the nation. There is the
real prospect, depending on whom the president nominates, that there could
be a deeply partisan war that could lead to the so-called 'nuclear option'
eliminating the filibuster and bringing the business of the U.S. Senate to a
virtual halt."

"This is yet another opportunity for the president to exercise the kind of
public leadership that Churchill spoke of [in 1942 during the dark days of
World War II]. It is a unique moment when the president, through the quality
of his nominee, could unite rather than divide the Senate and the nation.
Neither party should expect a nominee who will rubber-stamp their ideology.
The president owes the nation a nominee with integrity, a distinguished
judicial reputation, a keen legal mind and an abiding respect for the
Constitution. The Senate owes the nation a dignified nomination process."
4

"Justice Sunday II: God Save This Honorable Court:"

The Family Research Council (FRC), a Fundamentalist Christian advocacy
group, organized a satellite, radio and internet broadcast from the Two
Rivers Baptist Church in Nashville, TN, to conservative Christian churches
throughout the U.S. The theme was to promote confirmation of Judge Roberts as a strict constructionist replacement
for Sandra Day O'Connor. FRC president, Tony Perkins, said: "All the issues
we care about go back to the United States Supreme Court. Many of the court's
decisions on major issues like partial-birth abortion,
finding a constitutional 'right' for sodomy, and the
Ten Commandments, were decided by 5-to-4 court votes.
Sandra Day O'Connor was one of the swing votes, with the majority against us in
so many of those issues." 5

Americans United for Separation of Church and State has criticized
the event. Before Roberts' nomination, their executive director, Rev. Barry W. Lynn, said: "Tony Perkins and the FRC need to take a tip from Hollywood. Movie makers know that
when the original stinks, there's no point to cranking out a sequel....Most people I know go to church to connect with God, not hear a
rant posing as a sermon from Tony Perkins about which judges God wants to see on
the Supreme Court. "I find it ironic that this event is being held by groups
that claim to speak in Jesus' name. If Christ were to come back to Earth Aug.
14, my guess is that he would spend the day helping the poor, the needy and the
sick. There's one place I know he wouldn't be, and that's 'Justice Sunday II.'"
6

"Call to Action:"

The Iowa Family Policy Center, a conservative social and religious
state advocacy group, organized a "...day of prayer, fasting and
intercession for our nation." on 2005-JUL-20. They stated:

"The retirement
of Justice Sandra Day O'Connor from the U.S. Supreme Court offers pro-family
Americans the most important opportunity we have had in decades to end the
Supreme Courts string of anti-Christian decisions....Justice O'Connor was often
on the wrong side of 5-4 decisions striking at the heart of family values. The
Court's extra-constitutional rulings on the Ten Commandments, abortion, and
sodomy laws clearly illustrate the need for a new justice who will interpret the
Constitution as it was written and as our founders intended." They have promoted a
replacement for Justice O'Connor who is a "strict constructionist."
7

Senate hearings of Robert's confirmation:

Judge Robert's confirmation hearings began on
2005-SEP-12 before the Justice Committee of the Senate. During the first day of
hearings:

The Democratic members of the committee
touched on the importance of determining Judge Robert's opinion about key
matters, such as whether the U.S. Constitution contains a privacy clause.
This is the principle on which Roe v. Wade (which
guarantees women access to early abortions) and
Lawrence v. Texas (which prohibits the criminalization of sexual behaviors
between adults in privatewhich some people believe are immoral) and other decisions.

The Republican members of the committee
emphasized Judge Roberts impressive intelligence, honesty, background, experience,
and ethical standards. They stressed that Roberts should not be forced to
answer questions on cases or issues that might come before the Supreme Court
in the future. Since he might well serve on the court for over three
decades, that would place an enormous range of topics off limits.

Nobody really discussed the key issue: whether
his political philosophy is to treat the U.S. Constitution as
an enduring or living document. That is,
whether he interprets it in terms of the beliefs of its authors and the
values of society at the time it was written, or in terms of today's
society.

Judge Roberts spoke for only six minutes. He used a
baseball analogy, suggesting that "Justices are like umpires; umpires don't make
the rules, they apply them. The role of an umpire and a judge is critical -- they
make sure everybody plays by the rules. But it is a limited role. Nobody ever
went to a ballgame to see the umpire.....If I am confirmed, I will confront
every case with an open mind," he said. "I will fully and fairly analyze the
legal arguments that are presented. I will be open to the considered views of my
colleagues on the bench. And I will decide every case based on the record, based
on the rule of law, without fear or favor, to the best of my ability.....I will
remember that it is my job to call balls and strikes, and not to pitch or bat."

On SEP-13, during the second day of hearings, he surprised many observers by
stating that he would be reluctant to overturn long-established Supreme Court
precedents like Roe v. Wade. He said: "I do think that it is a jolt to the legal
system when you overrule a precedent. Precedent plays an important role in
promoting stability and evenhandedness."
11

On SEP-14, questioning by senators will conclude
and testimony will begin from outside supporters and opponents of Judge Robert's
confirmation. Debate in the entire Senate is expected to begin on SEP-26. If
confirmed, Roberts would be able to join the Supreme Court when it starts its
fall session on OCT-01.

The confirmation vote for the late Chief Justice Rehnquist was 65 to 33 in
favor --
the smallest margin for any chief justice. Most observers expect a closer vote
for Judge Roberts. However, there are few doubts expressed
about his eventual confirmation by the Senate.
11

On 2005-SEP-22, the
Senate Judiciary Committee voted 13 to 5 to send Judge John Roberts' nomination
as chief justice to the full Senate. The Senate began formal debate on Roberts'
nomination on SEP-27.

Robert's nomination was
approved by the Senate by a vote of 77 to 22. Chief Justice Roberts is now the
17th chief justice of the Supreme Court.

Nomination of Justice O'Connor's replacement:

With Justice O'Connor's resignation, and
Chief Justice Rehnquist's death, the remaining seven members of the Supreme
Court are almost all male. This contrasts sharply with the Supreme Court of Canada
where the majority of Justices, including the Chief Justice, are female. High
courts of other western democracies generally have at least a significant minority of
female justices. President Bush was under some pressure to nominate a female
Justice as Justice O'Connor's replacement in order to keep the gender balance
intact. He was also being pressured to nominate the first Hispanic American,
perhaps Attorney General Alberto Gonzalas.

There are rumors that President Bush met secretly with Federal Appellate
Judge Priscilla Owen, 50, from the Fifth Circuit Court of Appeals in Austin, TX
during early 2005-September. Commentators listed other possible nominees including:

Appellate Judge Edith Clement (5th Circuit, New Orleans, LA)

Appellate Judge Edith Jones (5th Circuit. Houston, TX)

Appellate Judge Karen Williams (4th Circuit, Orangeburg, SC)

Judge Maura Corrigan (Michigan Supreme Court) 10

As the title of a Robert Novak op-ed piece says, "Replacing
O'Connor could get ugly." A great deal is at stake.

Dick Polman of Knight Ridder Newspapers wrote on 2005-SEP-27 about America's
social and religious conservatives:

"Satisfy us, or else."

"A historic moment has arrived. For decades, they have pined for a conservative
takeover of the U.S. Supreme Court. They have tried to mute their concerns about
Bush's first nominee, John G. Roberts Jr., a pillar of the legal establishment
and therefore not the conservative ideologue of their dreams. But now that Bush
is poised - - any day now -- to name his second justice, to replace Sandra Day
O'Connor, they seem anxious to collect a crucial IOU from the man who would not
have won the White House without their votes."

"To fill the seat that could tip the court rightward, either Bush serves up a
diehard conservative nominee who doesn't mince words about opposing abortion and
gay rights (in other words, someone more militant than Roberts), or he will
surely infuriate many of his own followers -- who will then assail him as a
betrayer of the movement, and bash him with the fervor normally exhibited by
liberals." 12

President Bush made an unexpected choice. He did
not pick his nominees from among the sitting judges and appellate judges. He
selected Harriet Miers, an old friend and the White House counsel. He invited her for dinner on
2005-OCT-02. This would not have raised eyebrows, because of her post.

Early on the morning of OCT-03, President Bush
announced that he had nominated Harriet Miers to be considered as Associate
Justice, to replace Sandra Day O'Connor. He said: "She has devoted her
life to the rule of law and the cause of justice. She will be an outstanding
addition to the Supreme Court of the United States......She will strictly
interpret our Constitution and laws. She will not legislate from the bench."
Ms. Miers responded: "If
confirmed, I recognize I will have a tremendous responsibility to keep our
judicial system strong and to help insure the court meets their obligations to
strictly apply the laws and Constitution." 13

Roberts handles his first case as chief justice:

The Supreme Court heard verbal arguments about Oregon's
death with dignity law. As usual, the justices showed
signs of their serious division. Being discussed was whether the federal
government should be able to override a state law allowing assisted suicide -- a
measure twice approved by Oregon voters. According to the Daily Telegraph
(London):

"Mr Roberts, 50, who was sworn in last week, dominated proceedings almost
from their outset."

"His principal argument was that to make Oregon an exception could undermine
the federal regulation of addictive drugs including steroids and
painkillers."

"Even as Oregon's senior assistant attorney general, Robert Atkinson, was
making his opening remarks, Chief Justice Roberts interrupted him to ask:
'Doesn't that undermine and make enforcement possible?' "

"His performance won high marks from the American Right who saw it as an
early sign that the court would be in good hands." 14